Obama administration backs transgender rights

FILE - In this Thursday, Nov. 7, 2013 file photo, Karen England, executive director of the California Resource Institute, left, and volunteers Grace LeFever, center, and Christina Hill, sort through stacks of mail with petitions for a referendum to overturn a new California law that allows transgender students to chose which public school restrooms they use, in Sacramento, Calif. Opponents of the law are working to collect the 504,760 signatures needed to place the referendum on the November 2014 ballot. If approved by voters, the referendum would overturn the law, approved by state lawmakers, that allows transgender students the choice of which restrooms they could use, but also whether to play boys or girls sports. (AP Photo/Rich Pedroncelli, File)

Photo: Rich Pedroncelli, Associated Press

As a conservative group circulates petitions asking voters to overturn California’s transgender rights law, the Obama administration has launched a legal campaign that would override any such ballot measure and bar employers and schools from discriminating based on gender identity.

The administration’s position, set forth in school-restroom cases in Virginia and Michigan, is that federal sex-discrimination laws require equal treatment for transgender students and employees. And while the U.S. Supreme Court has never considered a gender-identity case, the court ruled in 1989 that employers could not penalize women for failing to conform to traditional gender roles — and government lawyers are saying the same reasoning applies to transgender cases.

The 1989 ruling, allowing a sex-discrimination suit by a woman who was allegedly denied a promotion for acting “macho,” established that “discrimination based on an employee’s nonconformity to sex stereotypes is a form of sex discrimination,” a Justice Department attorney said in a filing in the case of a Virginia teenager who identifies as male but was excluded from boys’ restrooms by a new school district policy. That policy, the government lawyer argued, “is based on impermissible sex stereotypes about what it means to be a boy.”

The first judge to consider the argument wasn’t impressed. U.S. District Judge Robert Doumar of Norfolk, Va., ruled Monday that the sex-discrimination law doesn’t cover a transgender student like 16-year-old Gavin Grimm, whom Doumar described, according to published reports, as “a biological female who wants to be a male.” The judge referred to being transgender as “a mental disorder” and said he was more concerned about the privacy rights of other students.

That’s also the position of a group called Privacy for All, which is gathering signatures for a proposed November 2016 initiative that would require schools and other government agencies in California to let a person’s biological gender determine access to restrooms and other facilities. The measure would repeal a 2013 state law, the first of its kind in the nation, allowing students to use restrooms that conform with their gender identity, and would prohibit schools from adopting such practices on their own. It would also allow private citizens to collect $4,000 in damages for violations.

“When I go in a ladies’ restroom, I expect only ladies should be there,” said Karen England, spokeswoman for the initiative sponsors and executive director of the social-conservative group Capitol Resource Institute. “It is an invasion of my privacy to have a biological male next to me in these facilities.”

Fourteen-year-old Zoey Luna has a different perspective. Born male, she identified herself as female by age 10 but was denied access to girls’ restrooms and locker rooms in elementary and middle schools, prompting questions from her classmates and criticism from some of her teachers. Before the new state law took effect, she said, she was doing poorly in school and wanted to stay home.

“I was totally unwelcomed. They (the teachers) would tell me, ‘Be a student, not a distraction,’ ” said Zoey, who is about to start high school in the Los Angeles suburb of Downey while taking hormone treatments. “Why do they have to be so worried about a trans kid using a bathroom?”

Doumar’s ruling in Virginia, and a similar ruling in April by a federal judge in Pennsylvania, are headed for appeals courts. The issue could reach the Supreme Court by 2017, when a new presidential administration would decide whether to maintain Obama’s position in legal arguments.

One federal appeals court, the 10th Circuit in Denver, ruled in 2007 that a transgender bus driver in Utah wasn’t protected by sex-discrimination laws and that her company’s fear of liability if she was allowed to use women’s restrooms was a legal reason for firing her.

But since the Supreme Court’s 1989 ruling on gender stereotypes, other courts “have recognized with near-total uniformity” that the laws on gender bias apply to transgender cases, the 11th U.S. Circuit Court of Appeals in Denver said in a 2011 ruling.

Most of those cases involved employment disputes. But the Obama administration has filed two public school cases in the past two years, both in Southern California, and won settlements from both districts requiring equal treatment for transgender students.

Workers protected

On another front, the U.S. Equal Employment Opportunity Commission, with a majority of Obama-appointed Democrats, ruled in 2012 that an employer could not fire a worker for being transgender. This April, the commission said the Army had discriminated against a transgender civilian employee by denying her access to women’s restrooms and referring to her with male pronouns. The decisions are binding on federal agencies and advisory for private employers, who can be sued by the commission for ignoring them.

Legally and in the court of public opinion, the trend is toward acceptance, said Ilona Turner, legal director of the Transgender Law Center in San Francisco, which brought the 2012 case to the employment commission. A few years ago, she said, an initiative to repeal the state law would have been likely to pass, but that’s changing as more Californians meet transgender people or see them on television.

“The public understanding of who transgender people are is changing very quickly,” Turner said.

Bob Egelko has been a reporter since June 1970. He spent 30 years with the Associated Press, covering news, politics and occasionally sports in Los Angeles, San Diego and Sacramento, and legal affairs in San Francisco from 1984 onward. He worked for the San Francisco Examiner for five months in 2000, then joined The Chronicle in November 2000.

His beat includes state and federal courts in California, the Supreme Court and the State Bar. He has a law degree from McGeorge School of Law in Sacramento and is a member of the bar. Coverage has included the passage of Proposition 13 in 1978, the appointment of Rose Bird to the state Supreme Court and her removal by the voters, the death penalty in California and the battles over gay rights and same-sex marriage.